Citation Nr: 1401437	
Decision Date: 01/13/14    Archive Date: 01/31/14

DOCKET NO.  10-00 157A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Entitlement to an initial compensable rating for intercostal myositis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Fleming, Counsel



INTRODUCTION

The Veteran had active military service from September 1988 to September 2008.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, in which the RO granted the Veteran service connection for intercostal myositis, assigning an initial noncompensable rating.  

The Board notes that, in addition to the instant claim, the Veteran initiated an appeal for service connection for frequent and difficult urination and increased ratings for service-connected insomnia, status post laminectomy L5, residual laminectomy scar, and sinusitis.  In his January 2010 VA Form 9, the Veteran indicated that his appeal as to those issues would be satisfied if the RO granted him certain specified disability ratings for each disorder.  Subsequently, in rating decisions issued in November 2010 and February 2011, the RO awarded the Veteran service connection for frequent and difficult urination and granted him the disability ratings he requested in the January 2010 VA Form 9.  The RO noted in the November 2010 and February 2011 rating decisions that the ratings assigned therein satisfied the Veteran's appeal, as the ratings assigned to each disorder corresponded with the ratings he requested in his appeal.  The Veteran did not dispute the RO's assessment as to the ratings assigned for any of the identified issues; thus, the Board finds that the Veteran's appeal has been satisfied as to the issues of entitlement to service connection for frequent and difficult urination and entitlement to increased ratings for service-connected insomnia, status post laminectomy L5, residual laminectomy scar, and sinusitis.  Those issues are thus no longer in appellate status and will not be addressed by the Board.


FINDING OF FACT

Intercostal myositis has been manifested by no more than slight impairment of the muscles of respiration manifested by pain, spasm, and tenderness in the right rib cage, but there is no functional loss due to muscle damage and no cardinal signs or symptoms of muscle disability.  No evidence of fascial defect, atrophy, or impaired tonus, or impairment of function has been shown.


CONCLUSION OF LAW

The criteria for an initial compensable rating for intercostal myositis have not been met.  38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.7, 4.56, 4.73, Diagnostic Code 5321 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004).  See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession).

Here, the Board finds that all notification and development action needed to arrive at a decision on the claim on appeal has been accomplished.

In this respect, the Board notes that the Veteran participated in VA's Benefits Delivery at Discharge (BDD) Program that assists service members at participating military bases with development of VA disability compensation claims prior to their discharge from active military service.  Of record is an acknowledgement, signed by the Veteran in April 2008, that he had been notified of the evidence or information that VA needed to substantiate his claim, what evidence VA was responsible for getting, and what information and evidence the Veteran was responsible for providing to VA.  He also acknowledged that he had the opportunity to identify any information or evidence that VA should use to decide his claim, and that he would be given a medical examination for the purpose of substantiating his claim.  Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence.

The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled."  Pelegrini, 18 Vet. App. at 122.  In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  In addition, the Veteran was given the opportunity to respond following the BDD notice.

The Board notes that VCAA notice is not required with respect to every aspect of a claim raised by a claimant.  If, for example, a Veteran files a claim for service connection for a disability, the claim is granted, and he files an appeal with respect to the rating assigned and/or effective date of the award, VA is not required to provide a new VCAA notice with respect to the matter of his entitlement to a higher rating and/or an earlier effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (holding that when a claim for service connection has been proven, the purpose of § 5103(a) has been satisfied, and notice under its provisions has been satisfied).  The Board notes that after an appellant has filed a notice of disagreement as to the initial effective date or disability rating assigned-thereby initiating the appellate process-different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in 38 U.S.C.A. §§ 7105(d) and 5103A.  Id.  Here, the Veteran's claim for a higher initial rating falls squarely within this pattern.  Thus, no additional VCAA notice was required with respect to the claim on appeal.

The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal.  Records of the Veteran's post-service treatment with both private and VA treatment providers are of record.  In addition, the Veteran was afforded VA examinations in April 2008, May 2010, and June 2013; reports of those examinations are of record.  In that connection, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, the Board finds that the VA examinations obtained in this case are adequate, as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran, and document that the examiners conducted full physical examination of the Veteran.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met.  38 C.F.R. § 3.159(c)(4).  The Veteran has further been given the opportunity to submit evidence, and he has provided written argument in support of his claim.  The Veteran has not identified, and the record does not indicate, existing records pertinent to the claim that need to be obtained.

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.


II.  Analysis

The Veteran contends that his service-connected intercostal myositis is more disabling than reflected by the noncompensable rating initially assigned.

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2013).

When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use).  See 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  

Relevant medical evidence of record consists of VA examinations conducted in April 2008, May 2010, and June 2013, as well as records of VA and private treatment the Veteran has received during the claim period.  Private and VA treatment records reflect an ongoing diagnosis of intercostal myositis.  In addition, the Veteran contended in his January 2010 VA Form 9 that his inability to run long distances in service due to the "stitch" in his side caused by intercostal myositis represents at least a "moderate" level of muscle disability.

Report of the April 2008 VA examination reflects that the Veteran complained of pain in his right ribs occurring "intermittently" three times per week lasting two to three hours at a time.  He complained specifically of "cramping pain and twitchings" that were elicited by physical activities and felt like an object was being inserted between his ribs.  He was noted to use a TENS unit and heat therapy to address the disorder but stated that he was able to function without medication even during a flare-up.  No scarring or peripheral nerve involvement was noted.  The examiner observed tenderness to the right low costal region of the rib cage, with no surgery or resection.  Radiological evaluation of the Veteran's rib cage was normal.  The examiner diagnosed the Veteran with intercostal myositis and noted the subjective factor of pain, with the only objective factor being tenderness of the Veteran's rib cage on the right side.

Report of the May 2010 VA examination reflects that the Veteran complained of right-sided muscle pain and spasm that first occurred while he was carrying heavy equipment during service.  He stated that the pain occurred "a couple times a day" and lasted for several hours at a time.  No history of wounds or other trauma to the muscles was noted; the examiner specifically found there to be no intermuscular scarring and stated that no muscle had been injured, destroyed, or traversed.  The examiner found the Veteran's muscle function to be normal in terms of comfort, endurance, and strength sufficient to perform the activities of daily living.  No residuals of nerve, tendon, or bone damage were observed, and the examiner found there to be no scarring, no muscle herniation, and no loss of deep fascia or muscle substance.  No joint was limited in motion due to muscle disease or injury, and the only objective manifestation the examiner found was tenderness to palpation in the right lower rib area.  Radiological evaluation of the Veteran's chest and rib cage was normal, and the examiner diagnosed the Veteran with "right sided muscle pain and spasm with no known etiology."

Report of the June 2013 VA examination reflects that the Veteran was noted to have no penetrating muscle injury but was found to complain of tightness and spasms in the chest wall both when he was physically active and when he was at rest.  No scarring, muscle herniation, atrophy, or any fascial defect was noted.  In addition, the examiner specifically found that the Veteran's intercostal myositis did not affect any muscle substance or function, including no loss of power, weakness, lowered threshold of fatigue, fatigue-pain, or impairment of coordination.  All muscle strength was tested as normal, and no neurological complications were found.  The examiner diagnosed the Veteran with intercostal myositis and found the disorder to be "quiescent."  The examiner found the disorder to have no impact on his employability.

The Veteran is service connected for intercostal myositis, which has been assigned an initial noncompensable disability evaluation under Diagnostic Code 5399- 5321.  He claims that his disability is more severely disabling than contemplated by the noncompensable rating.  As noted above, he has argued that he believes the "stitch" in his side from the intercostal myositis represents at least a moderate level of muscle disability. 

Under Diagnostic Code 5321, a noncompensable disability evaluation is assigned for slight impairment of the muscles of respiration (the thoracic group).  A 10 percent rating is warranted for moderate impairment.  Finally, a 20 percent rating, the maximum allowed, is warranted for severe or moderately severe impairment of the muscles of respiration.  See 38 C.F.R. § 4.73, Diagnostic Code 5321 (2013).

Disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, or severe.  38 C.F.R. § 4.56(d) (2013).  Slight muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability.  Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue.  38 C.F.R. § 4.56(d)(1).

Moderate muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in- service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.  Objectively, there are entrance and (if present) exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side.  38 C.F.R. § 4.56(d)(2).

Moderately severe muscle disability contemplates a through and through or deep penetrating wound by a small high-velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements.  Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more Muscle Groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment.  38 C.F.R. § 4.56(d)(3).

Severe muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements.  Objectively, there are ragged, depressed, and adherent scars indicating wide damage to Muscle Groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side.  38 C.F.R. § 4.56(d)(4).

If present, the following are also signs of severe muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; (c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of Muscle Groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile.  Id.

For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination; and uncertainty of movement.  38 C.F.R. § 4.56(c).

Upon review of the evidence, the Board finds that an initial compensable rating is not warranted for the Veteran's intercostal myositis.  In so finding, the Board notes that each of the VA examiners has found that the only symptom displayed by the Veteran is tenderness to the right rib cage area, with subjective complaints of pain and spasm.  There is no functional debility in terms of muscle strength or action, and there has been no wound or trauma to the Veteran's muscles of respiration.  Further, the June 2013 VA examiner specifically found the Veteran's intercostal myositis to be "quiescent," manifesting no loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement.  Each VA examiner has specifically noted that there has been no loss of muscle function and no loss of deep fascia or muscle substance or impairment in tonus.  Rather, the findings made on each of the VA examinations have correlated well with the expected findings for the definition of slight muscle impairment.  There is no fascial defect, no muscle atrophy and, as already noted, no loss of function.  

Although he has intermittent pain and spasm in the right rib cage area, as well as tenderness to palpation, the Board finds that the Veteran's disability picture most closely approximates the criteria for "slight" impairment of the muscles of respiration.  38 C.F.R. § 4.7.  Indeed, the symptoms of the disability exactly mirror the criteria for a characterization of "slight" impairment:  healing with good functional results; no cardinal signs or symptoms of muscle disability; no scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function.  Even with the complaints of pain, spasm, and tenderness to the right rib cage area, there has been no demonstration of loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement.  As already noted, each of the VA examiners found the Veteran's muscles to function without impairment.  Muscle impairment is therefore best characterized as no more than "slight."  

As for the possibility of scarring or nerve damage, none has been shown.  The examiners clearly noted this in each of the April 2008, May 2010, and June 2013 VA examination reports.  Therefore, 38 C.F.R. §§ 4.118 (Diagnostic Codes 7800 through 7805, governing scarring) and 4.124a (Diagnostic Codes 8510 through 8719, governing nerve disorders) are not for application here.

In exceptional cases, where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to service-connected disabilities.  The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321 (2013).  The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  The first step is to determine whether the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  If so, the second step is to determine whether the Veteran's exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization.  If the first two steps have been satisfied, the third step is to refer the claim to the under Secretary for Benefits or the Director of the Compensation and Pension Service for determination of whether an extra-schedular rating is warranted.

The above determination is based upon consideration of applicable rating provisions.  It should also be pointed out that there is no showing that the Veteran's intercostal myositis has reflected so exceptional or unusual a disability picture as to warrant consideration of the assignment of any higher evaluation on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1) (2013).  In that connection, the Board finds that the symptoms of the Veteran's disability have been accurately reflected and contemplated by the schedular criteria.  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral is not warranted for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating.  See Thun, 22 Vet. App. at 115-16.

For the foregoing reasons, the Board finds that the Veteran's service-connected intercostal myositis warrants no more than the noncompensable disability rating initially assigned.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.56, 4.73, Diagnostic Code 5321 (2013).  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim for a higher rating, that doctrine is not helpful to the Veteran.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to an initial compensable rating for intercostal myositis is denied.



________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs